Grieving widow wins right to use husband’s sperm
A QUEENSLAND widow has won the right to use her late husband's sperm to conceive their second child after it was harvested when he died unexpectedly from a heart attack.
Dr Jennifer Johanna Gaffney, 36, an anaesthetist and mother of one from Coorparoo, was today granted the right by the Brisbane Supreme Court to fulfil her and her husband Daniel's dream of having two or three children.
Daniel, a dermatologist, tragically died on November 5 or 6 last year from a coronary artery dissection, which causes heart attack, at aged 38.
Hours after he died, Dr Gaffney arranged for doctors to contact the coroner who consented to the removal of Daniel's sperm.
His right testes was removed at the Sunshine Coast Hospital on November 7, then was frozen and transported to Care Fertility in Greenslopes, the court was told.
Dr Gaffney was forced to apply to the State's highest court for permission to use the sperm because there are no laws in Queensland which apply to the use of sperm after death.
The court heard Dr Gaffney had already sought advice from the National Health and Medical Research Council's ethical guidelines around using sperm of a deceased partner.
Justice Susan Brown today granted Dr Gaffney's application to use the sperm, finding the woman would act in the best interests of any child.
Ms Brown found the removal of the sperm was authorised under law because Daniel had never, during his lifetime, expressed opposition to the removal of the organs from his body after his death, instead indicating he wanted to be an organ donor when the pair lived in the UK.
"The evidence before me indicates the NHMRC guidelines … have been met for the proposed use for Daniel's sperm," she said.
"The evidence also shows that the two of them were planning on having more than one child, that is deposed to not only by the applicant but of both the mothers of Daniel and the applicant.
"It is always difficult for any inference to be drawn in the absence of hearing from the person themselves … however the evidence does support the fact that Daniel did wish to have further children and there is no evidence that he objected to the use of the sperm by Dr Gaffney, a person that he was committed to, and had been committed to for some 12 years, in the future."
The court found the fact the pair "had commenced plans to have a second child" was a strong reason why a declaration to use the sperm should be made.
The couple's son Nate was 18 months old when his father died and Mrs Gaffney was attending an IVF appointment planning for their second child the morning of her husband's death, the court was told.
Dr Gaffney's barrister Michael De Waard today told the court Daniel's mother Vivienne and his siblings were aware she was applying to use his sperm and supported the move.
He said the 36-year-old was financially stable and in a position to obtain maternity leave should she fall pregnant with another child.
"She has strong support from family and her friendship group," Mr De Waard said.
"She is well aware this won't be an easy road …"
Dr Gaffney and Daniel were together for 12 years, and married for five years when he died. They migrated to Queensland from England in 2008.
"My loss of Dan is not only the loss of my partner and best friend, but also the loss of the life we had so carefully planned and so determinedly worked towards," Dr Gaffney wrote in court documents.
"I have thought long and hard about whether this application will be positive on the lives of myself and Nate, together with our extended family.
"I have firmly formed the view that not only is this what Dan would want, it is what I want in his absence. I also strongly believe that another child will be in the best interests of Nate."
The court also heard Dr Gaffney intend to seek specialist counselling to assist with telling any potential child the circumstances of his or her birth.
The 36-year-old currently works three days a week at the Mater Hospital in Brisbane as an anaesthetist.
In the case of Toowoomba woman Ayla Cresswell, who last year received permission to use her dead boyfriend's sperm, a Supreme court judge said that the state's parliament likely needs to resolve legal issues about Queensland women's rights to access their dead partners sperm.